Earlier this month, I wrote a blog called Court’s Should Not Issue FROs to Address Parenting Issues. That blogged addressed a case where the trial court entered a Final Restraining Order (FRO) to remedy custody and parenting issues when the underlying act was not actually domestic violence.

I did not think that I would be blogging about that topic again so soon, but alas, a similar theme was addressed in the unreported (non-precedential) case of T.L. v. J.D.G., released on February 26, 2024. The Appellate Division had a lot to say about the trial court errors in their 42 page decision (particularly long for an unreported decision).

Mom’s domestic violence complaint starts with a statement that she has had an ongoing custody dispute with dad “ever since she placed him on child support…” Ever since, she alleged that he text her in early morning hours and drives past her home and place of employment. She further noted that he has not made any threats to harm her but takes pictures when he does his drive by’s. At the hearing, she testified about a parenting exchange where they spoke for 4-5 minutes where defendant called her a “worthless scumbag” and an “indecent person.” She also testified about early morning text messages with similar language that she testified that she stopped reading.

Dad testified that the problems started, not when mom sought child support, but after she cut off his parenting time over the Christmas holidays. During the hearing, the trial court told Dad, “See, here’s the issue. If you don’t get your parenting time, you don’t go to the plaintiff’s house and scream and holler,” though dad said that he didn’t scream and holler.

The court ordered dad to pass up the text messages that were allegedly offensive. After reviewing all of them the court said it “didn’t see anything in these text messages and [it] didn’t read every word of every text message, but there didn’t seem [to be] any disparaging remarks.” The trial court also found that the text messages were “inadequate.”

Though not in the Complaint, mom testified about a parenting issue from the prior July and said she wanted supervised parenting time and demanded that dad have cameras for parenting time. There was testimony about parenting issues related to dad’s refusal to get cameras. The court got into a colloquy with dad and then then asked whether defendant had anything further to say because it was “about ready to grant this final restraining order because of this issue over the camera.”

The trial court ultimately granted mom the FRO reasoning that the parenting issue developed into an act of domestic violence, specifically that the dad’s refusal to use the camera created the problem causing the 49 texts, which though he already said he coudln’t find an issue with, “were clearly annoying in nature.” The court then referred to the child support issue.

The Appellate Division bluntly and swiftly held:

we think it plain, based on the evidence in the record and the court’s findings, that the final order entered in this case cannot stand, the temporary order should not be reinstated, and the complaint must be dismissed.

Leaving aside the court’s failure to explain how defendant’s many inoffensive text messages to plaintiff and his two visits to her home and place of work, each lasting fewer than five minutes, qualified as harassment under N.J.S.A. 2C:33-4(a) and (c), the court never found defendant acted with a purpose to harass, which is, of course, fatal to a finding he committed the offense. See State v. Hoffman, 149 N.J. 564, 576-77 (1997). There is, however, yet another, completely independent reason reversal is required: “It constitutes a fundamental violation of due process to convert a hearing on a complaint alleging one act of domestic violence into a hearing on other acts of domestic violence which are not even alleged in the complaint.” J.F. v. B.K., 308 N.J. Super. 387, 391-92 (App. Div. 1998).

The trial court appears to have lost all sight that this was a hearing for a final restraining order alleging harassment on a very thin record, which it inappropriately converted into a hearing on defendant’s fitness to parent his thirteen-year-old daughter, a claim not even cognizable in this proceeding, with no notice, no counsel, and no competent evidence. The final restraining order should not have been entered. It must be reversed and the case
( Emphasis added).

As to the so-called “annoying” texts, the Appellate Division, found that they did not constitute harassment and noted the ample case law that :

speech that doesn’t invade a plaintiff’s “privacy by its anonymity, offensive coarseness, or extreme inconvenience does not lose constitutional protection even when it is annoying.” (citation omitted). See Burkert, 231 N.J. at 283 (“We cannot say that the Legislature
intended to criminalize speech that poses no threat to a person’s safety or security or speech that does not intolerably interfere with a person’s reasonable expectation of privacy.”)

The opinion went on with a pretty good primer on criminal harassment and harassment in the context of domestic violence cases.

The Appellate Division went on to criticize the consideration of anything related to the camera since it wasn’t in mom’s complaint, noting that:

The Court has been unequivocal in admonishing trial courts that a finding of domestic violence based on an allegation not contained in the complaint violates a defendant’s right to due process. See H.E.S. v. J.C.S., 175 N.J. 309, 321-25 (2003).

The decision also pointed out the trial court’s “uneven approach to questioning the witnesses”, essentially another affront to dad’s due process rights. The criticism was not limited to the question, but to how each party was treated, noting:

We also find it troubling that while the court repeatedly chastised defendant over his failure to go to court if he was being denied parenting time, it never explained why plaintiff was free to unilaterally deny defendant access to the children (“See, here’s — there’s two solutions. One, she calls DYFS [the Division of Youth and Family Services] and [it] conducts an investigation. Or two, she doesn’t give you parenting time.”). Further, in its repeated criticisms about defendant’s failure to go to court to address parenting time issues, the
court ignored the likelihood that defendant filed his cross-motion to formalize the parties’ existing custody arrangement at his very first opportunity in light of the courts’ traditional recess week between Christmas and New Year’s.

The decision ends with the criticism of the trial court’s focus on the child support issue. Specifically, the Appellate Division noted:

There are other disturbing aspects of this record, including the trial court’s focus on what it perceived to be defendant’s wrongful failure to pay child support, asking defendant “[s]o for the last . . . three and a half years, you haven’t sent to [plaintiff] one penny of child support,” despite both parties testifying to several years of shared custody and the issue having no relevance to plaintiff’s harassment complaint. Likewise inappropriate was the court’s
comment that after plaintiff filed a motion for child support, defendant, “of course, . . . responds by not just asking for parenting time, but moves for custody.” That comment smacks of bias, particularly as defendant testified he was not moving “for custody” but only to formalize the parties’ existing shared parenting arrangement, which plaintiff both acknowledged and had unilaterally altered by refusing defendant overnights with the children. The comment was not made better by the court’s finding that “[p]eople have that right to ask for whatever they want in a court action, but the actions the court finds here to be inappropriate.”

As a result, the FRO was reversed and remanded for instructions for it to be dismissed.

Over my many years of experience, while maybe not as egregious as what appears to have happened in this case, I have seen similar examples of unfairness, often when neither party or the defendant does not have counsel, but also in two counsel cases. As a young attorney representing a plaintiff who was legitimately the subject of domestic violence (an assault), the judge started the hearing by asking the unrepresented defendant, “when I grant the final restraining order, what parenting time are you seeking.” While this isn’t a criminal matter so the presumption of innocence does not apply, so to, there should not be a presumption of guilt. Rather, notwithstanding the statutory mandate of the Prevention of Domestic Violence Act, the process must be fair for both parties, given the serious ramifications that go along with the entry of an FRO.

That said, once again, for purposes of this blog, courts shoudln’t be considering child support or parenting issues where there is no bona fide domestic violence and certainly shouldn’t be granting FROs based on same.

Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Department of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973) 994-7501, or esolotoff@foxrothschild.com.